En Banc. Dore, C.j. Dolliver and Durham, JJ., and Callow, J. Pro Tem., concur. Guy, Brachtenbach, and Andersen, JJ., concur by separate opinion; Utter and Smith, JJ., dissent by separate opinion; Johnson, J., did not participate in the disposition of this case.
While patrolling the grounds of Lakeshore Village Apartments, police officers observed appellant Glover leaving one of the apartment buildings. The officers stopped appellant Glover to investigate a possible criminal trespass. As the officers approached Glover, one of them observed a plastic baggie in his hand which he believed contained cocaine. The officers then asked Glover to open his hand. The trial judge in his oral opinion found that "[b]ased upon experience, location, and conduct of the Respondent, the officer had a reasonably articulable suspicion that criminal conduct was going on; that he had a right to detain the Respondent long enough for further investigation, which included the justifiable demand that the Respondent open his a [ sic ] hand. . . ." (Italics ours.) Report of Proceedings, at 34-35.
Glover was arrested and convicted of possession of cocaine. We agree with the trial court and hold that the officers had reasonable suspicion to conduct a Terry stop and that their investigation provided them with probable cause that a crime was being committed justifying their search of appellant. Terry v. Ohio, 392 U.S. 1, 16-19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). We affirm.*fn1
On May 6, 1989, Seattle police officers Michael Alphin and Alex Wiggins were engaged in a routine bicycle patrol of Lakeshore Village Apartments, a multiunit apartment complex occupying approximately one city block and housing more than 500 residents. Alphin testified that the apartments have a history of a high incidence of gang and drug activity. In order to reduce that activity and to deter traffic and the congregation of individuals on the property, the management surrounded the complex with a fence
topped with concertina wire and posted several no trespassing or loitering signs throughout the property. Pursuant to an agreement between the management and the Seattle police, the police stop individuals observed on the apartment grounds who are not recognized as residents, and they investigate those individuals for criminal trespassing. If the individual stopped is found to be a nonresident, the police admonish the individual not to return to the property and ask the person to sign a card acknowledging the initial trespass and advising that the next time the person will be cited for criminal trespass if the individual returns. See State v. Little, 116 Wash. 2d 488, 490, 806 P.2d 749 (1991).*fn2
During their patrol of the complex, the officers observed Conjewel Glover coming out of one of the apartment buildings. Glover initially walked toward the officers but, upon seeing the police, he turned and walked in the opposite direction. The officers approached Glover because they felt that he was acting suspiciously. The suspicious behavior included Glover's turning away from the officers, walking faster, looking toward the officers and then looking away, and playing with his baseball cap by taking it off and twisting it around. Both officers stated that they were familiar with the residents of Lakeshore Village and that they did not recognize Glover as being a resident of the apartment. The officers testified regarding the trespass admonishment agreement between the police and the apartment management and stated that they stopped Glover to determine if he had a trespass admonishment card on file.
After stopping Glover, Wiggins asked him if he lived at Lakeshore Village and Glover responded, "Yes." Report of Proceedings, at 22. Shortly after Wiggins began questioning
Glover, Alphin noticed a clear plastic bag protruding from Glover's closed right hand. Alphin then grabbed Glover to prevent him from running away while Wiggins searched and handcuffed him. The Washington State Crime Laboratory analyzed the contents of the baggie and determined that it was cocaine.
On June 29, 1989, Glover was charged by information with possession of cocaine in violation of RCW 69.50.401(d). Glover moved under CrR 3.6 to suppress the cocaine as evidence seized in an allegedly illegal search. At a juvenile court hearing before Judge Robert E. Dixon, the court denied Glover's motion to suppress and found him guilty. Glover appealed his conviction asserting that his initial stop violated the Fourth Amendment and article 1, section 7 of the state constitution and that the arresting officers exceeded the permissible scope of a Terry stop when they searched Glover without probable cause.
Dimensions of a Terry Stop
[1, 2] In the companion case, State v. Little, 116 Wash. 2d 488, 495-96, 806 P.2d 749 (1991), we set forth the dimensions of a permissible investigatory stop under the Fourth Amendment and article 1, section 7. We noted that those constitutional provisions apply to all seizures of persons, including those encompassing only a brief detention short of traditional arrest. Little, 116 Wash. 2d at 495. The Fourth Amendment and article 1, section 7 require that the seizure be reasonable. Terry v. Ohio, 392 U.S. 1, 16-19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). A police officer can conduct an investigative or Terry stop based on less than probable cause to arrest. Terry, 392 U.S. at 25-26.
When police officers have a "well-founded suspicion not amounting to probable cause" to arrest, they may nonetheless stop a suspected person, identify themselves, and ask that person for identification and an explanation of his or her activities.
State v. White, 97 Wash. 2d 92, 105, 640 P.2d 1061 (1982) (quoting State v. Gluck, 83 Wash. 2d 424, 426, 518 P.2d 703 (1974)); Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979).
[3, 4] A Terry stop is justified if the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; White, 97 Wash. 2d at 105. When reviewing the merits of an investigatory stop, a court must evaluate the totality of circumstances presented to the investigating officer. United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981); see Little, 116 Wash. 2d at 495. The court takes into account an officer's training and experience when determining the reasonableness of a Terry stop. State v. Mercer, 45 Wash. App. 769, 774, 727 P.2d 676 (1986); State v. Samsel, 39 Wash. App. 564, 570-71, 694 P.2d 670 (1985).
Officers Conducted a Lawful Terry Stop and Did Not Exceed Scope of Stop
Officers Alphin and Wiggins conducted a lawful Terry stop of Glover. The officers testified that they observed Glover exiting one of the apartment buildings and that upon seeing the police Glover began to act suspiciously. Further, the officers testified that they frequently patrolled the area, were familiar with the residents of the Lakeshore Village, and that they did not recognize Glover as an apartment resident. In viewing the totality of the circumstances presented to the investigating officers, we hold that the police, based upon experience, location, and the conduct of Glover, ...